Manzano v. Davis
Order Accepting 6 Findings, Conclusions and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability. (Ordered by Judge Sam A Lindsay on 10/12/2017) (ykp)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ORSI MANZANO, #1940335,
LORIE DAVIS, Director
Texas Department of Criminal Justice,
Correctional Institutions Division,
Civil Action No. 3:17-CV-2095-L
On August 15, 2017, United States Magistrate Judge David L. Horan entered the Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”), recommending
that the court deny without prejudice this habeas action, filed pursuant to 28 U.S.C. § 2254, for
failure to exhaust state remedies. No objections to the Report were received as of the date of this
After considering the pleadings, file, record in this case, and Report, the court determines that
the findings and conclusions of the magistrate judge are correct, accepts them as those of the court,
and dismisses without prejudice this action for failure to exhaust state remedies.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the court denies a certificate of appealability.* The court determines that Petitioner has failed to
Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
Certificate of Appealability. The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. Before entering the final order, the
court may direct the parties to submit arguments on whether a certificate should issue. If the court
issues a certificate, the court must state the specific issue or issues that satisfy the showing required
Order – Page 1
show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims
debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition states
a valid claim of the denial of a constitutional right” and “debatable whether [this court] was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this
determination, the court accepts and incorporates by reference the magistrate judge’s report filed in
this case. In the event that Petitioner files a notice of appeal, he must pay the $505 appellate filing
fee or submit a motion to proceed in forma pauperis (“IFP”), unless he has been granted IFP status
by the district court.
It is so ordered this 12th day of October, 2017.
Sam A. Lindsay
United States District Judge
by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A
motion to reconsider a denial does not extend the time to appeal.
(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an
order entered under these rules. A timely notice of appeal must be filed even if the district court issues
a certificate of appealability.
Order – Page 2
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